EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII: Employer Questionnaire on Applicant Gender, Race and Ethnicity Data
October 15, 2008
At the request of Senator Barbara Mikulski, we are responding to your question about whether companies are permitted to ask job applicants voluntarily to provide data about their gender, race and ethnicity. You submitted a questionnaire that ____ is using to collect this personal information from its job applicants. You questioned the legality of this form, given that it is illegal for American employers to refuse to hire someone because of their gender, race, or ethnicity.
The Equal Employment Opportunity Commission (EEOC) enforces the federal civil rights laws that prohibit such employment discrimination on the basis of race, color, sex, religion, national origin, age, and disability. In order to generate the data necessary for employers and the EEOC to determine if discrimination has occurred, the EEOC’s regulations require companies to maintain, and have available for inspection, data by identifiable race, sex and ethnic group for all job applicants. See 29 C.F.R. § 1607.4A. Companies must have safeguards so that this data can be used only for uncovering employment discrimination, and all questions to applicants must be voluntary. See 29 C.F.R. § 1607.4B. Finally, employers must keep this information separate from the job applications, hold it confidentially, and never share it with those making selection and hiring decisions. It appears from the form that you submitted that ____ is collecting the necessary information and safeguarding its use by indicating that the data will be kept separate from employment applications and will have no effect on decisions concerning those applications.
Although companies may ask the questions about which you express concern, it would, with limited exceptions, violate federal EEO laws if companies were to refuse to hire someone on the basis of race, color, sex, religion, national origin, age or disability. If you believe that you have been denied employment opportunities due to your race, color, sex, religion, national origin, age or disability, please contact your local EEOC office as soon as possible. See http://www.eeoc.gov/offices.html for a listing of those offices.
We hope this information is helpful. Please note that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission.
Reed L. Russell
Office of Senator Barbara A. Mikulski
This page was last modified on November 18, 2008.
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